A JUDICIAL REFORM
BASED ON THE NEEDS OF CITIZEN
APRIL 2005
COURT OF QUÉBEC
REPORT OF THE
REFLECTION AND ORIENTATION COMMITTEE
ON COURTS OF FIRST INSTANCE IN QUÉBEC
The illustration on the cover of this document is
a reproduction of a work by Mr. Justice Jean La Rue.
It represents the various stakeholders, namely,
the federal and provincial governments, the courts
and the Bar, which must work together
to form a coherent whole.
Graphic design : Immaculæ conception graphique
Printing :Transcontinental Québec
Legal deposit _ 2nd quarter 2005
Bibliothèque nationale du Québec
National Library of Canada
ISBN : 2-550-44737-9
A JUDICIAL REFORM
BASED ON THE NEEDS OF CITIZEN
APRIL 2005
COURT OF QUÉBEC
REPORT OF THE
REFLECTION AND ORIENTATION COMMITTEE
ON COURTS OF FIRST INSTANCE IN QUÉBEC
3
“We are approaching another pivotal moment in the evolution
of the Provincial Court, a constitutional moment when our
governments need to decide if the Provincial Court is a truly
independent court of justice or merely an inferior court as existed
in 1867. Our purpose is to encourage discussions to examine that
fundamental question in a coherent way that could result in a
practical plan of action to rationalize our court system. Unification
has been viewed as the ultimate resolution of the question of the
status of the Provincial Court, and while that initiative had
developed considerable momentum a decade ago, and despite
much political will, the initiative stalled....However, while court
unification is an important topic in any such dialogue, the primary
focus of such a dialogue should be on the rights of Canadians
and on the Constitution.The question we pose is: does the
current status of the Provincial Court provide Canadian citizens
with the judicial system contemplated by the Constitution?”1
1 Gerald T.G. Seniuk and Noel Lyon, “The Supreme Court of Canada and the Provincial Court in Canada,” (2000) 79 Can. Bar Rev. 77, p.3.
Québec City, April 2005
The Honourable Guy Gagnon
Chief Judge
Court of Québec
Dear Justice Gagnon,
As part of an exercise to evaluate the Court of Québec-a healthy exercise for any organization that wishes
to maintain quality standards-we asked the following question in regard to the current judicial structure:
Although the organization of courts of first instance in Québec has been amended periodically, does the
existing organizational model adequately address citizens’ needs? To answer this question, you created
the Reflection and Orientation Committee on Courts of First Instance in January 2004.
It is with great pleasure that I present you with the Committee’s report, which proposes, as its title indicates,
“a judicial reform based on the needs of citizens.”
As actors within the system and, especially, first-hand witnesses to the way it operates, we have taken
a critical look at the current judicial structure.
In the Committee members’ opinion, the integration of courts of first instance has become necessary
and unavoidable, and is not only in the interest of judicial institutions, but also, and above all,
of Québec society in general.
The current cost of judicial administration, the obvious need to make the system more effective,
and the needless complexity arising from the presence of so many different authorities all argue for
the integration of the Superior Court, the Court of Québec and the municipal courts using
an approach based on the true needs of citizens.
The Committee members believe that, regardless of the angle from which the question is studied,
the integration of courts of first instance offers only advantages to citizens, litigants, interested
participants in the judicial process, judges, and governments alike.
The search for global solutions will be well under way when all concerned institutions sit
at the same table to discuss this subject in a spirit of openness and genuine concern for citizens.
We hope that the ideas contained in this report will prompt concerted action on the part
of all institutions that are in a position to make a difference.
Sincerely,
For the Committee
René de la Sablonnière
Senior Associate Chief Judge
The following persons participated in drafting this
document, namely, the judges of the Court of
Québec, during their annual meeting in Québec
City on November 3, 4 and 5, 2004,
and the members of the Committee:
JUDGES OF THE COURT OF QUÉBEC
Mr Justice Maurice Abud
Mr Justice Pierre E. Audet
Mr Justice Rémi Bouchard
Mr Justice Claude C. Boulanger
Mr Justice Claude Chicoine
Mr Justice André Cloutier
Mr Justice Hubert Couture
Mr Justice René de la Sablonnière
Mr Justice Gabriel de Pokomandy
Mr Justice Maurice Galarneau
Mrs Justice Paule Gaumond
Mr Justice Jean-François Gosselin
Mr Justice Jacques Lachapelle
Mr Justice Guy Lecompte
Mrs Justice Michèle Lefebvre
Mrs Justice Céline Pelletier
Mr Justice Michel A. Pinsonnault
Mrs Justice Viviane Primeau
Mr Justice Denis Saulnier
Mr Justice Michel Simard
Mrs Justice Huguette St-Louis
Mr Justice Alain Turgeon
MEMBERS OF THE BAR
Me François Boulianne
Me Renée Desrosiers de Lanauze
Me Renée Gingras
Me Michel Laferrière
Me Jean Latulippe
Me Simon Turmel
5
AN INTEGRATED COURT
OF FIRST INSTANCE IN QUÉBEC
TABLE OF CONTENTS
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
FOREWORD
9
HISTORICAL BACKGROUND
The British Model
The Canadian Model
The Expansion of the Provincial Courts in Québec
The Court of Québec Today
11
11
12
12
13
STATUS OF THE COURTS
The Superior Court
The Court of Québec
The Municipal Courts
Presiding Justices of the Peace
Features Common to Courts of First Instance
14
14
14
14
15
15
PROBLEMS INHERENT IN THE CURRENT JUDICIAL STRUCTURE
16
THE PENDING REFORM IN FAMILY MATTERS:
THE UNIFIED FAMILY COURT (UFC)
The Pending Reform
Hypotheses
20
20
21
A JUDICIAL ORGANIZATION BASED ON THE NEEDS OF CITIZENS
22
THE WINNING SOLUTION:
AN INTEGRATED COURT OF FIRST INSTANCE
23
CONCLUSION
27
APPENDIX HISTORICAL REFERENCES
31
#1
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
FOREWORD
The Québec judicial system has
undergone significant changes in
recent decades.The creation of the
Court of Québec, the establishment
of the Administrative Tribunal of
Quebec, the reform of the Code of
Civil Procedure in the wake of the
overhaul of the Civil Code and the
restructuring of municipal courts
are all illustrations of this realignment.
Other proposed changes remain to
be implemented, namely, the creation
of a family court and, perhaps even
more fundamentally, the creation of
a unified court of first instance.
For quite some time now, the organization of trial
courts has prompted reflection and reports.To
mention only a few, there was the Prévost Report
in 1970, the working paper put out by Law
Reform Commission of Canada in 1974, the
report on the proceedings of the Sommet de la
justice in 1992, the Seniuk and Lyon study on
provincial courts in 2000 and the Ferland Report
on the civil procedure review in 2001.2
2 To facilitate the reading of the text, references are cited in full in the
bibliography at the end of the document.
9
Federal Bill C-22, one of whose aims was
to promote the creation of unified family
courts, died on the order paper following
the dissolution of Parliament on May 23, 2004.
This bill nonetheless triggered reflection
on what impact its adoption would have
had and encouraged discussion amongst the
judges of the Court of Québec on the need to
rethink the current organization of the judicial
system of the courts of first instance.Two other
parallel initiatives are currently under way, one
dealing with judicial organization in the
municipal field and the other with the
territorial organization of judicial services-both
launched by the Ministère de la Justice
du Québec.
3
In early 2004, the Chief Judge of the Court
of Québec created a working committee
whose mandate was to examine the functioning
of the judicial system of first instance and
to propose reforms.This document describes
the judicial system of first instance, studies
the proposal for a unified family court (UFC)
and raises certain problems with respect to
the organization and operation of municipal
courts. Lastly, it proposes a new and modern
structure for courts of first instance which
is closer to citizens, more accessible, more
efficient, better understood by the litigant
and more cost-effective.
3 Act to amend the Divorce Act, the Family Orders and Agreements
Enforcement Assistance Act, the Garnishment, Attachment and Pension
Diversion Act and the Judges Act and to amend other Acts in consequence, Bill C-22 (2nd reading), 2nd Session, 37th Parliament (Can).
#2
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
HISTORICAL BACKGROUND
A STRUCTURE
FOCUSED ON JUDICIAL REVIEW
The judicial system of original jurisdiction in Québec is currently
made up of three courts operating in tandem.The Superior Court,
whose judges are appointed by the federal government, has full and
general jurisdiction over all matters, except those specifically conferred
upon other courts by law.The Court of Québec, whose judges are appointed
by the provincial government, has a general jurisdiction which is broad
but restricted to areas explicitly provided for by law. Lastly, Québec’s
municipal courts network chiefly hears cases involving offences
perpetrated in the criminal and municipal regulatory field.
The organization of trial courts, as we know
it today in Canada, is both the product of
constitutional choices made in 1867 and of
constant adaptation to changes in the political,
social and economic climate of the country.4
It involves a centralized approach whose roots
lie in the British model of judicial organization.
THE BRITISH MODEL
Originally, the authorities who framed the
Constitution wished to ensure, in a very large
country with an uneven level of development
among the various provinces, the supremacy and
development of a strong centralized judicial
system, capable of guaranteeing the uniform
application of the rule of law while maintaining
4 Carl Baar, One Trial Court: Possibilities and Limitations (Ottawa:
Canadian Judicial Council, 1991), p.1:
“We see the courts, pre-eminently among our public institutions,
as steeped in tradition and conservatism. This view reflects our
understanding of an institution that predates our own political
system, and whose form and appearance reflect its origins and
development in medieval times. Courts characteristically display
a set of formalized relationships, with distinctive titles, apparel and
physical settings that identify both the hierarchical relations among
the participants and the common obligations that set them apart
from the rest of the community.
Yet within the past 25 years, the ways our courts are organized
have fundamentally changed. These changes in court organization
contrast with the continuing appearance of stability and tradition.
As a result, the public is largely unaware of how different our courts
are from what they were a generation ago.
It is time to take stock of the changes the courts have undergone,
and consider in light of that stocktaking a new generation
of proposals that are emerging from governments, law reform
bodies and members of the judiciary themselves.”
5 On this question, see Peter W. Hogg, Constitutional Law of Canada
(Toronto: Carswell, 2003 update), p. 7-2; the Supreme Court of
Canada also commented on this subject in Reference re Remuneration
of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3, para. 106:
“The historical origins of the protection of judicial independence
in the United Kingdom, and thus in the Canadian Constitution,
can be traced to the Act of Settlement of 1701. As we said in Valente,
supra, at p. 693, that Act was the “historical inspiration” for the
judicature provisions of the Constitution Act, 1867. Admittedly, the
Act only extends protection to judges of the English superior courts.
However, our Constitution has evolved over time. In the same way
that our understanding of rights and freedoms has grown, such that
they have now been expressly entrenched through the enactment
of the Constitution Act, 1982, so too has judicial independence
grown into a principle that now extends to all courts, not just
the superior courts of this country.”
For a description of the organization of the English judicial system,
see Penny Darbyshire, English Legal System in a Nutshell, 3rd ed.
(London: Sweet & Maxwell, 1995).
11
12
close ties with its English roots.5 To that end, the
British tradition of a court of original jurisdiction,
playing a leading role in the establishment and
enforcement of the law6 and the review of
decisions handed down by other types of tribunals,
was imported. Such a tribunal enjoys the best
status and guarantees of independence vis-à-vis
the political authorities. It is made up of a limited
number of judges, working mainly in large urban
centres.To function, however, the model must
be supported by a network of courts whose
jurisdiction and status are more limited, but which
can ensure broader territorial coverage. All these
other so-called “inferior” courts are subject to the
superintending powers and review of the court
of original jurisdiction. Initially, these lower courts,
which were made up of non-legal professionals,7
did not have the status of a court of record and
were heavily dependent upon local authorities.8
THE CANADIAN MODEL
The wording of section 969 of the Constitution
Act, 186710 entrenched the integration of this
model in Canada. It provides that the federal
government shall appoint the judges of the
superior courts and the district or county courts.
The Canadian model also includes a third level
of jurisdiction, consisting of magistrate’s courts
and justices of the peace. In most Canadian
6 In MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, para. 37,
Chief Justice Antonio Lamer wrote:
“In the constitutional arrangements passed on to us by the
British and recognized by the preamble to the Constitution Act, 1867,
the provincial superior courts are the foundation
of the rule of law itself....”
7 Gerald T.G. Seniuk and Noel Lyon, supra, Note 1, p. 17:
“For example, the inferior tribunals of 1867 required the supervision
of legally trained persons. This supervisory role belonged to the
superior court, whereas professional judges supervised the work of
the lay Justices of the Peace and Magistrates. At that time, Justices
of the Peace, and the early magistrates were more closely identified
with law enforcement than with judicial supervision. The legally
trained judiciary in the superior courts supervised the work of
these legally untrained officers by means of judicial review and
prerogative writs. This reflected the huge difference in legal ability
between the superior and inferior courts in 1867.”
8 Even though the Privy Council in London expressed concerns, in
Martineau & Sons v. Montreal, [1932] A.C. 113, 120 and Toronto v. York,
[1938] A.C. 415, 426, about the possible influence of local authorities
on lower court judges, Peter Hogg is far from convinced that these
concerns were well founded. Peter Hogg, supra, Note 4, p. 7-4.
“Why should the federal government make appointments to the
provinces’ higher courts? The answer that has become conventional
is that s. 96 reinforces judicial independence by insulating the judges
from local pressures. But this explanation, although enthusiastically
endorsed by the Privy council, is not particularly convincing. There
is no reason to suppose that judges appointed by the provinces
would be less competent or independent than judges appointed by
the federal government.”
provinces, judicial responsibilities thus became
shared after Confederation between these
three types of courts.
Between 1969 and 1991, all the provinces did
away with district and county courts, leaving only
superior courts. In conjunction with this repeal,
most of the provinces considerably expanded the
scope of jurisdiction of provincial courts, while
incorporating therein that of magistrate’s courts.
These significant changes in the organization of
Canadian judicial tribunals reflect the shift away from
the British-inspired model dating back to 1867.11
THE EXPANSION
OF PROVINCIAL COURTS IN QUÉBEC
Judicial organization evolved in a slightly different
manner in the Province of Québec, which never
had a district or a county court. However, it did
have a circuit court, which was considered a
superior court and was presided over by judges
of the Superior Court.12 From the outset, the
Superior Court in Québec had a much broader
stature than in the other provinces. It provided,
on a regional scale, judicial services which, in the
other provinces, befell district or county courts.
Furthermore, in Québec, provincial courts
developed at a much faster pace and in a more
significant fashion than in any other province.
9 In Reference re Remuneration of Judges of the Provincial Court of Prince
Edward Island, [1997] 3 S.C.R. 3., para. 88, Justice Lamer commented
on the evolution of the interpretation of section 96:
“Section 96 seems to do no more than confer the power to appoint
judges of the superior, district, and county courts. It is a staffing
provision, and is once again a subtraction from the power of the
provinces under s. 92(14). However, through a process of judicial
interpretation, s. 96 has come to guarantee the core jurisdiction
of the courts which come within the scope of that provision.
In the past, this development has often been expressed as a logical
inference from the express terms of s. 96. Assuming that the goal
of s. 96 was the creation of “a unitary judicial system”, that goal
would have been undermined ‘if a province could pass legislation
creating a tribunal, appoint members thereto, and then confer on
the tribunal the jurisdiction of the superior courts’: Re Residential
Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728. However, as I recently
confirmed, s. 96 restricts not only the legislative competence of
provincial legislatures, but of Parliament as well: MacMillan Bloedel,
supra. The rationale for the provision has also shifted, away from
the protection of national unity, to the maintenance of the rule
of law through the protection of the judicial role.”
10 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C.
1985, Appendix II, No. 5.
In 1952, the Circuit Court was abolished and its
jurisdiction transferred to the Provincial Court.13
Today, the Court of Québec is the most important
provincial court in the country.There is no other
court of like status with a similar stature in any
of the common law countries. Lastly, Québec
has a network of municipal courts, an institution
found nowhere else in Canada.
THE COURT OF QUÉBEC TODAY
Over the past 17 years, the Court of Québec has
undergone significant developments. Created in
1988, it was born of the unification of the
Provincial Court, the Court of the Sessions of the
Peace, the Youth Court and the Expropriation
Tribunal.14 Today, it hears nearly 80% of all civil
proceedings, with the exception of family matters
and certain other matters reserved unto the
Superior Court. It should be noted that, for over
30 years now, the small claims division alone has
generated numerous legal proceedings, reflecting
the interest of the general public in a readily
accessible, low-cost judicial system.The lack of
formality in small claims courts and the very
active role played by the presiding judge rapidly
became key to their success.The Court of
Québec also hears close to 98% of all criminal
and penal cases, save for those brought before
the municipal courts. In matters of youth law,
11 Gerald T.G. Seniuk and Noel Lyon, supra, Note 1, p. 8 explain that the
concept of inferior court as we know it today is totally different from
the concept that prevailed in the early days of Confederation:
“The institutional root of this court is the inferior court as it was in
1867. But the Provincial Court of today is quite different from those
courts, both in the qualifications of its judges and in its jurisdiction.
The criminal jurisdiction of the court has increased greatly in the
past 30 years. Its jurisdiction bears no resemblance to the
jurisdiction of an inferior court in 1867. Furthermore, the court
system has also changed significantly since those years. For example,
the original three-tiered court structure has been reduced to a
two-tiered structure. And finally, with the inception of The Charter of
Rights and Freedoms, the Provincial Court has a greater constitutional
role than could ever have been envisioned in 1867. Thus, the
Provincial Court has an historic and systemic context.”
This change in the organization of judicial tribunals also raises questions
about the relevance of maintaining a distinction between categories
of tribunals. Gerald T.G. Seniuk and Noel Lyon, supra, Note 1, p. 4:
“The Provincial Court is a unique court, and its uniqueness raises
a number of questions about its status. It is a new court in our
constitutional history, and it does not easily fit its assigned
constitutional status as an inferior court. But neither is it a superior
court. If the Provincial Court is neither functionally an inferior
or constitutionally a superior court, then in which of these
two categories should it belong?”
12 Although the Supreme Court recognized, in Séminaire de Chicoutimi
v. Attorney General and Minister of Justice of the Province of Québec
and The City of Chicoutimi, [1973] S.C.R. 681, that the Circuit Court was
one of the courts referred to in section 96, the question of whether
it should be considered a superior court has never been officially
clarified and is more a matter of theory than of substance, as
it hears all cases pertaining to protection,
adoption and young offenders, with the
exception of trials by jury, thus fulfilling
a mission similar to that of the Superior Court
in regard to family law. Lastly, in administrative
matters, some 20 or more statutes provide for an
automatic right of appeal or an appeal with leave
before the Court or one of its judges. As a result
of these developments, the mission of the Court
of Québec and that of the Superior Court have
become fundamentally the same, namely,
the interpretation and enforcement
of the law in Québec.
13
Jacques Deslauriers explained in “La Cour provinciale et l’art. 96
de l’A.A.N.B.,” (1977) 18 C. de D. 881:
“It can thus be noted that the use of the words district, circuit or
county in the application of section 96 is a matter of terminology
rather than of substance. In the Province of Québec, the Circuit
Court exercised a jurisdiction similar to that of county courts
subject to section 96 in the other provinces. In any case,
the judges that presided over the Circuit Court were appointed
by the federal government.” [Free translation]
13 The events surrounding the abolition of the Circuit Court and the
transfer of its jurisdiction are described as follows by Ignace-J.
Deslauriers and Paul Robitaille in “Histoire des tribunaux et de
la magistrature du Québec: les Cours de Magistrat 1867 à 1965,
la Cour Provinciale 1965 à 1981 et leurs juges,” Bulletin no 44,
Comité général des juges de la Cour supérieure, 1981, p. 6:
“The real origin of today’s Provincial Court can be traced back
to a statute adopted in 1945 (9 Geo. VI, c. 19). Pursuant to this
statute, the Circuit Court was replaced by the Magistrate’s Court,
not only in the province but also in Montréal.
The Circuit Court continued to exist for a few more years, even
though, in practice, its jurisdiction had been suspended and its
judges had ceased to sit. However, in 1952, the Circuit Court was
finally abolished and its jurisdiction transferred in full to the
Magistrate’s Court, in both the province and Montréal. We know
that the expression “Magistrate’s Court” was later replaced by
“Provincial Court”, but, in reality, this amounted to nothing
more than a change in name.” [Free translation]
14 Act to amend the Courts of Justice Act and other legislation
to establish the Court of Québec, S.Q. 1988, c. 21.
#3
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
STATUS OF THE COURTS
14
Before discussing the problems
that stem from the organization of
courts of first instance in Québec,
it is important to describe the
current state of the various courts.
THE SUPERIOR COURT
The Superior Court consists of 144 judges,
to whose ranks can be added up to 111
supernumerary judges. It sits in 43 courthouses
or service outlets on a permanent basis and
serves 5 service outlets on a periodical basis.
This institution is concentrated mainly
in the county seats of the judicial districts.
MUNICIPAL COURTS
Québec is the only Canadian province with a
municipal court network, although certain Canadian
cities also have at their disposal justices of the peace,
vested, however, with a more limited jurisdiction.
Since 2002, all municipal courts and municipal
judges have been subject to a single statute,
namely, the Act respecting municipal courts.15
THE COURT OF QUÉBEC
The Court of Québec consist of up to 270
judges. It sits, on a permanent basis,
in 58 courthouses or service outlets and,
on a periodical basis, in 42 service outlets.
Since 1974, a travelling court formed of judges
of the Court of Québec has served more than
20 or so Cree and Inuit communities in James
Bay and Nunavik.The Court of Québec
also serves other remote communities
on the North Shore.
There are presently 88 municipal courts in
Québec.Their respective importance, in terms of
case load and jurisdictional responsibility, varies
widely. Municipal courts are independent courts
of record with both civil and criminal jurisdiction.
They all fall within the purview of an associate
chief judge of the Court of Québec appointed
to oversee them.16 Although their jurisdiction
is simultaneously civil, criminal and penal, they
mainly hear cases involving offences relating to
criminal and municipal regulatory matters.
15 R.S.Q., c. C-72.01.
18 R.S.Q., c. T-16.
16 Courts of Justice Act, R.S.Q., c. T-16, s. 98, para. 3.
19 In particular, they hear cases with respect to the statutes of Quebec
and to federal statutes to which the Code of Criminal Procedure
applies. They also have jurisdiction to hear cases pursuant to Part
XXVII of the Criminal Code with respect to federal statutes other
than the latter and the Controlled Drugs and Substances Act.
In addition, they are authorized to issue warrants and
telewarrants throughout the province.
17 Act to amend the Courts of Justice Act and other legislative provisions
as regards the status of justices of the peace, S.Q. 2004, c. 12.
15
PRESIDING JUSTICES OF THE PEACE
On June 30, 2004,17 the Courts of Justice Act18
was amended to create two categories of justices
of the peace: presiding justices of the peace and
administrative justices of the peace.The new
presiding justices of the peace are appointed
during good behaviour.They exercise their
duties with the Court of Québec and fall under
the authority of the chief judge of this court.
Their jurisdiction extends to the entire
territory of Québec.19
20 Gerald T.G. Seniuk et Noel Lyon, supra, Note 1, p. 20, Note 80:
“The issue of whether a court is a court of record is a residue of
unhistorical and unmeritorious distinctions that reflected a method
the central royal courts used to assert the constitutional superiority
of common law courts against other tribunals.”
FEATURES COMMON
TO COURTS OF FIRST INSTANCE
The Superior Court, the Court of Québec
and the municipal courts all have the status
of courts of record.20 Among the features
inherent in the status of a court of record,
it is important to note the power of judges
to punish for contempt of court in facie, the
power to have their orders enforced21 and
immunity from prosecution for acts
performed in the exercise of their duties.
The judges of these courts as well as the
presiding justices of the peace are appointed
by the government from among lawyers
who have been practicing their profession
for at least 10 years.They are subject to a
series of ethical principles enforceable
by a judicial council.
21 Karim Benyekhlef, “La notion de cour d’archives et les tribunaux
administratifs,” (1988) Vol. 22 No. 1 R.J.T., p. 61, 63 clarifies the
historical basis of the concept of court of record:
“The concept of court of record is an historical notion linked to the
infallibility of the king’s memory. During the period when the king
administered justice in person, it was assumed that ‘the personal
memory of the king about what he had previously done in his court
was taken to be infallible and conclusive when any question arose.’
This privilege was transmitted to royal judges when it was impossible
for the king to administer justice in person, with the result that ‘their
personal recollections about previous decisions of their courts also
became incontrovertible.’” [Free translation]
#4
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
PROBLEMS INHERENT
IN THE CURRENT JUDICIAL STRUCTURE
16
ARBITRARY DIVISION OF JURISDICTION
AND COMPLEXITY OF REMEDIES
The current sharing of responsibilities between
the Superior Court, the Court of Québec and the
municipal courts does not always reflect a rational
or functional principle of organization.
An example of irrationality might be, for instance,
in criminal matters, the offence of murder which
is excluded from the jurisdiction of the Court
of Québec whereas one of its judges may declare
a person to be a “dangerous offender”, thereby
permanently depriving this person of his or her
liberty. Note that, in civil matters, the Court of
Québec has jurisdiction to hear civil cases for
amounts in dispute having a value of $70,000,
but may not rule on a taking in payment of
hypothecary property for a lesser debt when the
property value exceeds this amount. Also, in civil
matters, it may not amend a maintenance order,
often for amounts which are relatively low,
whereas, in matters of provincial taxation, it may
decide on proceedings involving unlimited
amounts. In youth matters, it may not decide on
certain matters having a fundamental impact in
matters of youth protection, which fall under the
exclusive jurisdiction of the Court of Québec,
22 In Dr Q v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226, para. 21, the Chief Justice of the Supreme Court confirms
that henceforth, both judges sitting on judicial review and those
hearing a statutory appeal must be considered reviewing judges,
which implies, in both cases, the importance of using a pragmatic
and functional approach:
“The term ‘judicial review’ embraces review of administrative
decisions by way of both application for judicial review and statutory
rights of appeal. In every case where a statute delegates power to
an administrative decision-maker, the reviewing judge must begin
by determining the standard of review on the pragmatic
and functional approach.”
23 This perception is one of the results of the use of the terms
“superior” and “inferior”. The Law Reform Commission of Canada,
on page 14 of its Working Paper no. 59 entitled “Toward a Unified
Criminal Court,” (Ottawa: 1989), wrote that there is simply no
argument establishing that a one court is superior to another:
“There is certainly no empirical evidence that County Court judges
are superior in any way to Provincial Court judges, nor that Supreme
for instance in matters of consent to care, legal
guardianship, deprivation of an attribute of parental
authority, separation from bed and board and the
family residence, etc.
The current duality of jurisdiction between the
Superior Court and the Court of Québec,
especially in light of the compartmentalization
and overlapping of jurisdiction which it requires,
results in a useless complication of the remedies
available to litigants.
THE IMPACT OF THE COMPARTMENTALIZATION
OF JURISDICTION ON SERVICES DELIVERED
ON A REGIONAL SCALE
The current compartmentalization of jurisdiction
is especially detrimental to litigants outside urban
areas. Currently, the Court of Québec and the
municipal court network ensure broad territorial
coverage, whereas the Superior Court mainly
serves the county seats of judicial districts. Since
each judge is restricted to his or her own
jurisdiction, he or she may not be of assistance
to a judge of another jurisdiction if need be.
Court judges are more competent than all the others.
What is troubling, however, is that various characteristics of the
respective court levels could lead to a public perception that
a judicial hierarchy based on competence to try criminal cases
does indeed exist.” The Conférence des juges du Québec, on page
40 of its brief presented at the Sommet de la justice
(Québec: February 1992), agreed:
“Nonetheless, the very designation of one court in relation
to another gives litigants the impression that the members of one
court are superior to the members of another. They may this
conclude that there are two kinds of justice. Such a perception
is harmful to the entire judicial system.” [Free translation]
24 See, in particular, Gerald T.G. Seniuk and Noel Lyon, supra, Note 1,
p.5; Noel Lyon, “Provincial Courts and the Administration of Justice,”
Provincial Judges’ Journal, vol. 3, no. 3, 1979, p. 3.
This gives rise to situations where a judge of
one jurisdiction, sitting alone in a remote area, is
unable to hear a case, which may be of an urgent
nature, for the sole reason that he or she does not
have the authority to do so. As a result, the litigant
is very often required to wait for the arrival of
a judge having the appropriate jurisdictional
authority to hear his or her case.
RELEVANCE OF THE SUPERINTENDING
POWER OF THE SUPERIOR COURT
Originally, the superintending and review power
of superior courts could be justified, in particular
to ensure the review of judicial decisions made by
tribunals presided over by persons lacking legal
training.The judges of the Court of Québec today
have the same professional qualifications as the
judges of the Superior Court. Furthermore, when
a judge of the Court of Québec hears the appeal
of a decision of a tribunal or a jurisdictional body,
he or she is required to apply the standards of
review of a court sitting in a judicial review
or appellate capacity.22 In such circumstances,
one may question the relevance of maintaining,
in its current form, the superintending and review
power of the Superior Court. Experience has
shown that judicial review is very often used as a
delaying tactic or appeal mechanism rather than a
veritable judicial review for excess of jurisdiction.
HOW THE JUSTICE SYSTEM
IS PERCEIVED BY THE LITIGANT
Some observers argue that a system with multiple
trial jurisdictions runs the risk of drifting towards a
two-tiered system of justice or, at least, of fostering
such a perception among litigants.23 Even if justice
is rendered with the same degree of professionalism,
these distinctions may give rise to questions
by litigants regarding equal access to justice.24
For instance, the threshold of jurisdiction in civil
matters is currently set by an arbitrary decision
of the legislator, even though there is not
25 The Law Reform Commission of Canada, on page 8 of its Working
Paper no. 1 entitled “The Family Court” (Ottawa: 1974), wrote:
“By forcing parties to go to different courts in relation different
facets of a single problem, the process denies any one court the
opportunity to view the problem as a whole. As a result no one
person sees all the evidence, and remedies may be granted
which are not the best.”
The Civil Code Revision Office, Committee on the Family Court,
on page 25 of its Report on the Family Court
(Montréal: Éd. off. du Québec, 1975), wrote:
“Such fragmentation of jurisdictions in family matters results in
numerous disadvantages for litigants, including uncertainty, wasted
time and money, a plethora of procedures and possibilities of
conflicting rulings, all of which are sources of worry and frustration.
For the sitting judge, it is difficult and often downright impossible
to consider the family problem as a whole and come up with
a comprehensive settlement.” [Free translation]
necessarily a direct nexus between the monetary
value of a proceeding and the complexity of the
questions raised.
MULTIPLE JURISDICTIONS IN FAMILY MATTERS
Issues relating to adoption, youth protection,
filiation, legal guardianship and child custody fall
within two different jurisdictions, and overlapping
and compartmentalization of jurisdictions abound.
The Court of Québec has exclusive jurisdiction in
matters of youth protection whereas the Superior
Court, as a result of its jurisdiction in matters of
divorce and separation, deals with custody and interim
orders.The Court of Québec has exclusive jurisdiction
in matters of adoption whereas the Superior Court
has jurisdiction in respect of any other proceeding
related to filiation (acknowledgement of parenthood,
deprivation of parental authority, legal guardianship,
and emancipation).These issues are inextricably
linked and it would be preferable if they were
dealt with by the same jurisdiction, both with
a view to avoid conflicting judgments and to avoid
a fragmented, deferred and quite expensive solution to the litigant’s family problem.25 In addition
to these problems, let us mention the situation
of a child who is the victim of a criminal act
perpetrated by a parent, in which case the criminal
aspect may be dealt with before the Superior
Court or before the Court of Québec sitting
in a criminal capacity, as the case may be.To add
to the complexity, the municipal courts also have
criminal jurisdiction with respect to youths
between 14 and 17 years of age.
SUPPORT AND MAINTENANCE
The Court of Québec has jurisdiction in order
to ensure child protection but may not rule on
support payments. Conversely, the Superior
Court, which has jurisdiction to determine
support payments and the custody of a child,
may not rule on the measures necessary
to ensure that child’s protection.
More recently, the Civil Procedure Review Committee, on page 68
of its report entitled “Rapport sur la révision de la procédure civile Une nouvelle culture judiciaire” (Bibliothèque nationale du Québec:
2001), wrote:
“Not only does this fragmentation prevent the reaching of a single
settlement for a family dispute as part of one hearing, but it is also
likely to entail conflicting rulings. Furthermore, an array of hearings
and experts’ reports on the same situation result in extra time and
costs. Ongoing and effective collaboration between the Superior
Court and the Court of Québec has nonetheless helped reduce
and mitigate the problems experienced by citizens involved
simultaneously in disputes that fall within the jurisdiction
of different courts.” [Free translation]
17
MULTIPLE EXPERTS’ REPORTS
Experts’ reports are often essential, mainly
where the issues at hand are complex or
technical. Particularly in family matters, both
the Superior Court and the Court of Québec
require the preparation of psychosocial and
psychological assessments.This forces the
parties (the parents and the children) to
undergo various evaluations resulting in
significant costs to them, a procedure which
is often perceived to be abusive.
18
DELAYING TACTICS
When it comes to civil procedure, the remand
mechanisms based on the monetary jurisdiction
of the Court of Québec may result in delaying
tactics.The remand from one court to another,
among others, means that a litigant will lose
his or her priority and results in significant
delays, not to mention out-of-court and court
costs relating to the transfer of these cases.
For example, a proceeding scheduled for
hearing before the Court of Québec, and in
respect of which the parties have been waiting
for quite some time to be scheduled on the
hearing docket, may be transferred to the
Superior Court because the defendant has
filed a counterclaim for an amount exceeding
the jurisdiction of the Court of Québec.
This application may be filed after a long wait
and just prior to proceeding with the hearing.
Hence, the timelines start anew before the new
jurisdiction which is the Superior Court.26
MULTIPLE REMEDIES AVAILABLE
IN MATTERS OF PROTECTION OF THE PERSON,
TREATMENT AND INTEGRITY
Litigants nowadays have available to them
three fora when it comes to issues relating
to residential care and consent to treatment.
The Superior Court has jurisdiction to authorize
the care, the Court of Québec to decide on
residential care and psychiatric assessment,
and the Administrative Tribunal of Quebec to
evaluate the need for extending the custody
ordered by a judge of the Court of Québec. In
many a case, the litigant therefore has to appear
before several jurisdictions in order to obtain a
complete solution to his problem.
26 These tactics are a major cause of delays in the judicial system. On this
topic, see Yves-Marie Morissette, “Les lenteurs de la justice considérées
sous un angle qui les avantage,” (1987) 33 McGill Law Review, 137.
27 Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act, 1982 (U.K.), 1982, c. 11.
28 Despite this, in the Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island, supra, Note 9, para. 126,
the Supreme Court recognized the role of courts that do not have
the status of a superior court:
ALLOCATION OF RESOURCES
The duality of trial jurisdictions currently requires
two separate judicial administrations, namely two
Chief Justices, two Associate Chief Justices, two
teams of Associate Chief Justices and two teams
of coordinating judges, not to mention the
presiding judges, judges responsible of the
municipal courts and the infrastructures
necessary in order to organize those courts.
The coordination and planning of human
resources allocated to the administration of
justice is becoming more difficult because there
is no unified management of courts of first
instance.This necessarily results in exorbitant
costs and needless duplication of some of the
services provided. In this respect, the basic verdict
is unanimous: the limited resources of the State
could be allocated to the administration of justice
in a more rational, efficient and functional manner.
THE DUPLICATION AND COMPARTMENTALIZATION
OF JURISDICTION IN CRIMINAL MATTERS
Duplication and compartmentalization of
jurisdiction occur far less frequently in criminal
matters than in civil and in youth matters.The
Court of Québec has the broadest criminal
jurisdiction in Canada. Only offences provided
for in Section 469 of the Criminal Code fall within
the exclusive jurisdiction of the Superior Court.
REMEDIES GRANTED
UNDER THE CANADIAN CHARTER
Even though the Court of Québec may grant
a remedy pursuant to section 24 of the Canadian
Charter of Rights and Freedoms 27 or render
a statute inoperative, it does not have
jurisdiction to declare a statute void.28
THE ORGANIZATION
OF THE MUNICIPAL COURT SYSTEM
The reorganization of the trial court system also
encompasses the network of municipal courts.
However, the future of the latter and their place
within the judicial organization of courts of first
instance are already being studied by a working
committee created in May 2004 by the Minister
of Justice.This committee includes representatives
of associations and groups in the municipal sector,
legal professionals from the Ministère de la Justice
“The point I want to make first is that the institutional role
demanded of the judiciary under our Constitution is a role which
we now expect of provincial court judges. I am well aware that
provincial courts are creatures of statute, and that their existence
is not required by the Constitution. However, there is no doubt
that these statutory courts play a critical role in enforcing
the provisions and protecting the values of the Constitution.”
du Québec and municipal judges, and its findings
and recommendations are expected to be
published in the spring of 2005. However, without
waiting for the tabling of the committee’s report,
there are already grounds for drawing attention
to particular aspects of the current organization
and operation of municipal courts.29
THE STATUS OF MUNICIPAL JUDGES
Municipal courts are presided over by municipal
judges whose status varies depending on whether
they discharge their duties exclusively, or on a
full-time or part-time basis.The 22 judges of the
municipal courts of Montreal, Laval and Québec
City discharge their duties exclusively, and possess
the same status as judges of the Court of Québec.
There are also full-time judges who, essentially,
discharge their duties exclusively, and part-time
judges who carry out their professional activities
both as attorneys and as judges.
DUALITY OF JURISDICTION
AND DISPARITY OF TREATMENT
The current coexistence of the Court of Québec
and municipal courts as well as their duality of
jurisdiction are also grounds for disparity in the
treatment of criminal offences.This duality may
sometimes give the impression that a citizen does
not receive the same treatment for an offence
of the same nature. It is particularly evident in
procedural aspects, due to the almost total lack
of plea bargaining, or during sentencing, since,
in most cases, a municipal judge does not have
pre-sentence reports at his or her disposal.
NON-APPLICATION OF PROGRAMS
EXCLUDING RESORT TO THE COURT SYSTEM
As part of the memorandum of understanding
reached with the Attorney General in 1985,
approximately a hundred municipalities undertook
to apply a program for non-judicial treatment
of certain criminal offences committed by adults.
Of the 88 municipal courts that currently exist,
some thirty of them exercise jurisdiction pursuant
to Part XXVII of the Criminal Code. However, not
all of them apply the programs excluding resort to
the court system, although the judges of the Court
of Québec do.This means that two citizens
having perpetrated the same offence may be
29 The Court of Québec has already reflected on the problems facing
municipal courts in two reports entitled “Comité de réflexion
des juges de la Cour du Québec sur les juridictions concurrentielles”
and “Comité de travail sur les matières criminelle et municipale”.
treated differently, depending on whether they
are tried before a court that applies these programs
or a forum that is subject to the regular judicial
process.This results in a clear disparity for citizens
who do not have access to the more favourable
program (absence of a criminal record), for the
simple reason that they are not tried in a court
that applies it.
TRANSFER OF FILES
DEALING WITH CRIMINAL OFFENCES
The volume of criminal cases dealt with before
the municipal courts other than in Montreal,
Laval and Québec City is constantly on the
decline and represents a low percentage of all
provincial cases. Furthermore, for several years
now, certain municipalities have no longer
handled cases pursuant to Part XXVII of the
Criminal Code. In July 2004, the City of
Longueuil ceased exercising its jurisdiction
in criminal matters, and the City of Laval has
announced its intention to do the same. Already,
starting in the year 2000, the City of Sherbrooke
had abandoned its jurisdiction with respect to
Part XXVII and terminated the agreement
reached with the Attorney General of Québec.
Such trends are not desirable, because they mean
more uncertainty for litigants and do a disservice
to the administration of justice.
Incidentally, the advent of presiding justices
of the peace, who answer to the Chief Justice
of the Court of Québec, is an effective means
of ensuring the sustainability of the processes
at hand.This should be considered as a potential
solution within a broader assessment
of Québec’s judicial structure.
19
#5
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
THE PENDING REFORM IN FAMILY MATTERS:
THE UNIFIED FAMILY COURT (UFC)
20
THE PENDING REFORM
For some thirty years, a consensus has been
reached in the social, professional and judicial
fields as to the advisability of integrating spheres
of jurisdiction in family matters. As early as 1970,
the Prévost Report noted the negative impact of
the duality of jurisdiction exercised at that time
by the Superior Court and the Social Welfare
Court. In 1974 and 1975, the Law Reform
Commission of Canada, the Civil Code Revision
Office Committee on the Family Court and the
Minister of Justice of Québec, in his White Paper
entitled Livre blanc sur la justice contemporaine,
criticized the duplication of jurisdiction and
recommended various integration scenarios. In
1981, the Morin Report explicitly recommended
to the Minister of Justice of Québec the creation,
in family matters, of a single, independent
jurisdiction, made up of judges appointed
exclusively by the provincial government. At the
Sommet de la justice in 1992, the Justice Minister
undertook to discuss with the federal government
constitutional problems related to the establishment
of a unified family court. Finally, in 2001, the
Ferland Committee, was asked to make
recommendations in view of the modernization of
the Code of Civil Procedure, also recommended
that a unified family court having jurisdiction
over all family matters be created in Québec.
Bill C-22, tabled on December 10, 2002 in the
House of Commons (but which died on the order
paper upon dissolution of the House the day
before the elections), specifically sought to
promote the creation of unified family
courts throughout Canada.30
Since reform of the judicial structure
in family matters is always a topical issue
and because it may profoundly modify
the current organization of trial courts,
the best solution must be sought.
30 The bill provides, in particular, for the increase in the number
of judges appointed by the federal government who may
be assigned to unified family courts.
21
HYPOTHESES
AN INDEPENDENT FAMILY COURT The first proposal
involves an independent or autonomous family
court divided into two sections, one made up
of judges of the Court of Québec who would
exercise the jurisdiction currently conferred upon
this court, and the other section consisting of
judges of the Superior Court who would continue
to exercise their current jurisdiction. Even if in
practice this solution appears to be an interesting
compromise, it does however pose a certain
number of problems. It would certainly enable
the creation of a specialized institution made up
of expert judges, and facilitate the concentration
of specialized community and professional support
services; However, it would not allow to achieve
all the results expected by a complete unification
of the courts, since the judges would not have
general criminal or civil jurisdiction. In addition,
the physical investment necessary to create such
a court and the specific budgetary appropriations
required for its operation represent significant
obstacles to the its establishment.The creation
of an independent family court would create yet
another tribunal in Québec, which runs counter
to the philosophy and principles underlying
the creation of the Court of Québec and to the
currently prevailing trend toward the unification
of first instance trial courts.
Another
proposal put forth would consist in creating a
family court within the Court of Québec.
According to this hypothesis, the legislator would
grant to the Court of Québec a certain number
of powers that are not vested in the Superior
Court.This solution would in no way resolve
the problem of multiple jurisdictions and would
maintain a certain degree of fragmentation.
A FAMILY COURT WITHIN THE COURT OF QUÉBEC
A FAMILY COURT WITHIN THE SUPERIOR COURT The
solution put forth by the Ferland Committee
would involve creating a unified family court
within the Superior Court.This solution has
the advantage of a lack of constitutional
constraints to the integration of these
jurisdictions.This Court would be made up
of judges of the Superior Court as well
as of judges of the Court of Québec. An
administrative agreement between the Québec
and Canadian governments would allow for the
judges designated by the Québec government
to be appointed by the federal government to
exercise the same functions as the judges of the
Superior Court.This proposal has some advantages
but does not do away with certain inconvenients
(multiple jurisdictions, fragmentation) that an
overall unification would eradicate.
#6
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
A JUDICIAL ORGANIZATION
THAT PUT CITIZENS FIRST
22
The current structure of the judicial system of original jurisdiction,
which involves three jurisdictions working in tandem, is largely due
to constitutional choices made in 1867.31 However, profound changes
have taken place since, on the political, social and economical level.
The grounds underlying the court structure
based on the English model no longer exist.
Although useful in the past, this system is riddled
with multiple disadvantages and operational
problems that affect the quality of the judicial
services rendered to the litigant.
Furthermore, although there is broad consensus
that the integration of courts is called for in
family matters, nothing prevents this solution
from being considered for all matters. In 1992,
at the Sommet de la justice, the Conférence des
juges du Québec commented favourably on the
unification of trial courts.Two years before,
31 Law Reform Commission of Canada, supra, Note 23, p.9:
“The Canadian court system bears the characteristics and scars
of its distinctive history and evolution. Despite change, the system
remains cast in the mould of the nineteenth century. Further, it is
fragmented by the often opposing demands of a federal system. The
result is a multiplicity of trial courts and a consequent inability to
centralize and rationalize administration and management.”
32 Carl Baar, supra, Note 4, p. 12:
“After June 1990, however, when the provincial attorneys general
endorsed in principle complete unification of the trial courts, the
second scenario became the stated goal of the next generation of
structural reform in the courts. Complete unification would move
yet another long step away from the English model, but would also
break fundamentally with the existing Canadian model - eliminating
the two levels of trial courts and with them the distinction between
federally-appointed and provincially-appointed judges.”
the Attorney General of Ontario and all his
provincial counterparts stated, publicly and
unanimously, their position in favour of full
unification.32 The Law Reform Commission
of Canada has been recommending this solution
since 1974 in family matters, and since 1989
in criminal matters.
Today’s hierarchically-based organization
of the judicial system of original jurisdiction
must give way to a simplified judicial system,
accessible throughout the territory, the main
objective of which is to respond to the needs
of the litigants.33
33 This same type of judicial system was suggested by the American
Bar Association on page 3 of its Standards Relating to Court
Organization (Chicago, 1990):
“The aims of court organization can be most fully realized in a court
system that is unified in its structure and administration, staffed
by competent judges, judicial officers, administrators and other
personnel, and that has uniform rules and policies, clear lines
of administrative authority, and a sufficient unified budget.
The structure of the court system should be simple, consisting
of a trial court and an appellate court, each having divisions and
departments as needed. The trial court should have jurisdiction of
all cases and proceedings and direct responsibility and control over
all court operations and personnel essential to their management.
It should have, where appropriate, specialized procedures and
divisions to accommodate the various types of criminal, civil, and
family matters within its jurisdiction, including court-annexed
alternative dispute resolution (ADR) processes. The judicial
functions of the trial court should be performed by a single class
of judges, assisted by legally trained judicial officers.” [...]
#7
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
THE WINNING SOLUTION:
AN INTEGRATED COURT
OF FIRST INSTANCE
An integrated court of first instance is the best solution.Through
administrative agreements reached by the various levels of government,
it could be achieved by integrating the judges and judicial activities
of the Superior Court, the Court of Québec and the municipal courts.
ADVANTAGES
FOR LITIGANTS, TAXPAYERS AND CITIZENS
ONE-STOP SERVICE The primary benefit resulting
from an integration of trial courts in Québec, for
the litigant, would be the creation of a one-stop
service outlet.With such a tribunal in existence,
there would only be one access point into the
system, thus spelling the end of the prevailing
uncertainty as to the determination of the forum
where proceedings are to be instituted.
FULL JURISDICTION The integration of tribunals
would entail sole jurisdiction, insofar as every
judge of a court has jurisdiction in respect of any
matter that may come before the court, wherever
the matter may arise throughout the territory.
All the service outlets would be served by judges
having full jurisdiction, namely those of the
Superior Court, the Court of Québec and
the municipal courts.
SIMPLIFICATION OF THE PROCEDURE AND MEANS OF
REDRESS The means of redress would be more
easily identifiable, resulting in better accessibility
on the part of litigants, especially those
representing themselves.
TERRITORIAL COVERAGE AND ACCESSIBILITY OF JUSTICE
The integration of courts would allow for
an increase in the number of judges having
jurisdiction at every service outlet and facilitate
the assignment process, since the physical
jurisdiction of the judges would extend to
all trial matters. One of the essential objectives
underlying the creation of the Court of
Québec in 1988 was to ensure greater
mobility of the judges by allowing for
their assignment to all divisions. Integration
ensures the full implementation of this
objective by making all trial judges in
Québec available to discharge a common
task. It also allows citizens greater access to
court services in locations where the Superior
Court does not sit, thereby reducing travel
costs that would formerly have been paid
either by the litigant or the witnesses, or by
the Crown prosecutor. All the services
currently offered by the Superior Court
would therefore be accessible in all regions,
including those served solely by the Court
of Québec and vice versa.
23
ADVANTAGES
In
the event of a single trial court, all the judges of
this court would have jurisdiction to hear any
proceedings brought before them. In the future,
it will no longer be possible, due to the lack
of required jurisdiction, for a judge who is
overloaded not to be able to count on the
assistance of a colleague who is less busy.
On the basis of this principle, fewer judges
would be required at each location.
BETTER COOPERATION BETWEEN THE ACTING JUDGES
24
REDUCTION OF DELAYS In civil matters, integration
would put an end to time-consuming transfers
out-of-court based on the amount at issue.
In criminal and penal matters, it would accelerate
the process while avoiding, or at least limiting,
the making of artificial elections which are then
followed by re-elections before the initial court
and which have a delaying effect. In those regions
served by travelling judges, it would eliminate
delays involved in waiting for a judge having the
requisite jurisdiction. In family and youth matters,
integration would stamp out delays currently
caused by awaiting the decisions of another court.
(Indeed, current practice requires the Superior
Court to stay the family law case where
proceedings in matters of youth protection
are pending, so as to avoid conflicting judgments
and to obtain a better sense of direction
before judging on the merits).
As far as the litigant is
concerned, court costs, and especially
out-of-court costs, would be reduced by the
abridgement of delays and the elimination
of fruitless litigation and transfers of cases
between courts that result from concurrent
and compartmentalized jurisdictions.
REDUCTION OF COSTS
Integration
would avoid the development of contradictory
case law between the two currently existing
courts and reduce the occurrence of judicial review.
STABILITY AND DEVELOPMENT OF THE LAW
STREAMLINING OF THE RULES OF PRACTICE, PROCEDURE
AND EVIDENCE The integration of trial courts
would have a positive effect on the rules
of practice, procedure and evidence by making
them uniform.34 One single body of rules
of practice not only facilitates the preparation
of the litigants wishing to represent
themselves, but also that of the attorneys.
A unified
court of first instance would allow for a reduction
in the number of procedures required in order to
obtain justice, since all motions relating to a case
would be heard before the same judge.The litigant
would be required to commence fewer proceedings,
and therefore would have fewer costs to bear.
The reduction of the number of procedures
necessary in order to settle a case would also
promote a more comprehensive approach instead
of a more fragmented one. In certain types of
cases, litigants may then benefit from an overall
treatment of the aspects of his or her case, which
results in gains when it comes to delays but also
in the handing down of a better-quality decision.
REDUCTION OF THE NUMBER OF PROCEDURES
34 The American Bar Association, supra, Note 33, p. 14, underlined
the importance of uniform rules of practice:
“At the same time, the value of uniform rules is very great. They
establish standards of fairness and efficiency to which all may look.
They are guidelines for the judges, directives and authorizations for
auxiliary court personnel, and authoritative references for the lawyers.
They are a check on favoritism, corruption, and local prejudice.
Their formulation involves deliberations in which all relevant
interests, objectives, and constraints should be taken into account.”
FOR THE JUDICIARY
MANAGEMENT AND ADMINISTRATION OF THE COURTS
From the viewpoint of the administration of
justice, a unified court under the authority of a
single chief justice would allow for uniformity
in management and administration practices.
Integration would allow for a more balanced
distribution of judges among the regions and,
as a result, the implementation of more efficient
and uniform management policies that better
meet citizens’ needs. It would also eliminate the
duplication of judges in positions of authority,
simplify administration and reduce the number
of support personnel and related costs.
ASSIGNMENTS At each service outlet, integration
would result in an increase of the number of
judges having jurisdiction in respect of every case.
The rotation process would benefit from the fact
that the personal jurisdiction of the judges extends
to all trial matters. Unification confers upon judges
greater managerial flexibility, enabling them to
respond to needs as they arise. Finally, it would
means less travelling for judges, thereby reducing
travel and accommodation costs accordingly.
POOLING OF RESOURCES ON SPECIFIC CASES Integration
can create solutions to several administrative
problems caused by an insufficient number of
judges. Such is the case, for example, in criminal
matters, where the case load has increased due
to certain large-scale police operations. Because
there are not enough judges to respond to the
increased demand, those cases have been spread
out over a longer period of time. A single court
of first instance would allow for the creation of
a large criminal and penal division in which each
judge would have jurisdiction to hear any type
of proceeding and therefore meet any occasional
demands of such a nature.
Integration allows for
a better use of judges’ professional skills, since it
allows for the choice of a larger number of
candidates among judges with the professional
skills needed for the settlement of certain types
of cases, for instance in matters relating to taxation
SPECIALIZATION OF SERVICES
35 Friedland, M.L., A Place Apart: Judicial Independence and
Accountability in Canada (Ottawa: Canadian Judicial Council, 1995),
p. 181:
“In contrast with the federal courts, all provincial and territorial
courts are now run by the attorney general’s departments. Many
judges, lawyers, and government officials expressed to me a desire
find a better solution. They recognize the awkwardness
of the existing situation.”
law, municipal law, banking law or
corporate/commercial law. Integration may
even allow for the achievement, in certain
matters, such as in corporate/commercial law
or in administrative law, of a critical mass of cases,
thereby justifying the creation of specialized
divisions. An integrated court with more than
400 judges would facilitate the creation of more
specialized divisions, where necessary.
ADMINISTRATIVE AUTONOMY The increase in stature
of the court could help it attain administrative
autonomy, thereby reinforcing its institutional
independence.35
The integration of courts
would put an end to the current review process
of the decisions of the Court of Québec, since
all the judges would belong to the same court.36
SUPERINTENDING POWER
SUSTAINABILITY AND DEVELOPMENT OF ADMINISTRATIVE
LAW The integration of the courts would
put an end to the friction caused by the
coexistence of the administrative appeal
to the Court of Québec and judicial review
before the Superior Court.
COURT OF QUÉBEC The acting judges of the Court
of Québec would inherit all the current jurisdiction
of the judges of the Superior Court. Hence,
integration would allow them to make optimal
use of their time in the various service outlets
and handle all cases which are currently required
to be heard by judges sitting on different courts,
with the attendant consequences on delays, and
therefore for litigants.
The main advantage of the
integration of the judges of the Superior Court
into a unified Court would no doubt be the
diversification of their activity. Québec litigants
would benefit from all the knowledge and
jurisdiction of Superior Court judges in matters
that are currently assigned to the Court of
Québec, for example, the appeal of decisions
handed down by administrative tribunals.
SUPERIOR COURT
36 In this regard, the current tendency of common-law countries is
to replace the review procedure with various appeal procedures.
25
ADVANTAGES
FOR THE QUÉBEC GOVERNMENT
The budgets
dedicated to the compensation of judges would
be reduced considerably since, all jurisdictions
being considered, the total number of judges
would likely decline.There would be fewer
proceedings, less time wasted and a better use
of resources outside urban areas, hence savings
for the provincial government.
NUMBER OF POSITIONS TO BE FILLED
RELATIONS BETWEEN THE EXECUTIVE AND THE JUDICIARY
26
Integration would facilitate coordination,
cooperation and between the judicial and
executive powers, since the Minister of Justice
would have only one institution to deal with
in matters of management of courts of first
instance. In this regard, integration would
be all the more pertinent in a context
of full administrative autonomy.
BETTER ALLOCATION OF PERSONNEL ACCORDING TO CASE
LOAD The pooling of personnel would facilitate
the adjustment of the number of judges
to specific regional needs and, generally,
a better allocation of judges according
to the number of cases to be heard.
One of the essential objectives
underlying the creation of the Court of Québec
in 1988 was to ensure greater mobility on the part
of the judges, allowing them to be assigned to all
divisions. Integration of the courts would ensure
the full implementation of this goal. A better
allocation of judges is possible for the regions.
MOBILITY OF JUDGES
POOLING OF HUMAN AND PHYSICAL RESOURCES
Integration of the courts would allow for the
pooling of physical and human resources.
Economies of scale can be anticipated with
respect to capital property and secretarial
and research services.
It is conceivable that integration
could facilitate the budgetary appropriation
process, since there would be only one institution.
Greater transparency in resource allocation
according to the various fields of judicial activity
could certainly help achieve a better balance
between the legislative responsibilities of the
federal and provincial governments.
THE BUDGET
FOR THE FEDERAL GOVERNMENT
BETTER TERRITORIAL COVERAGE The federal
Department of Justice would also benefit,
since Canadian legislation could be applied
in all service outlets without additional costs.
For example, in family matters, litigants might
in future be heard in all locations currently
served by the Court of Québec.
MORE UNIFORM MANAGEMENT Coordination and
administrative procedures would be uniform,
since there would only be one court.
#8
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
CONCLUSION
The suggested model for an integrated court may be summarily described
as follows: one single court of first instance would have jurisdiction
for all matters currently divided between the Superior Court,
the Court of Québec and the municipal courts.This court would have
the constitutional status of a superior court, it would be the court
of original general jurisdiction in Québec and it would result
from the integration of these three courts.
The members of the Committee are aware that
a major judicial reform cannot be advocated
without serious deliberation, and this also applies
to the integration of courts of first instance.
The integration of the courts that resulted
in the current Court of Québec sets
a positive precedent.37
If deliberations are to be undertaken, the
Committee members would like to see them
proceed swiftly so as not to hamper integration.
The federal and provincial justice ministers,
the judges who are members of the institutions
affected by the project and the Bars are certainly
capable of perceiving the extent
of the resulting advantages at all levels.
If, as a society, we were to design a justice
system in this day and age, it would be interesting
to ask ourselves:
whether we would set up a superior
court, a provincial court and municipal
courts;
whether we would decide not to grant the
same jurisdiction to the judges that preside
over these courts, with the attendant
consequences;
whether we would decide to create
additional structures.
In short, if we had to do it over again, would we
do the same thing? In a sense, to ask the question
is to give the answer.
37 For a detailed enumeration of the advantages and effects resulting
from the creation of the Court of Québec further to the integration
of the four tribunals, see the conference given by Madam Justice
Huguette St-Louis in Saskatoon on May 16, 2002, entitled
“La réforme des tribunaux de première instance au Québec.”
27
APPENDIX
SUPPLEMENT
AN INTEGR ATED COURT OF FIRST INSTANCE IN QUÉBEC
HISTORICAL MILESTONES
1793
Judicature Act, 34 Geo. III, c. 6.
Creation of several courts for Lower Canada:
Court of King’s Bench (superior trial court in civil and criminal matters)
(Québec City and Montreal).
Provincial Courts (Trois-Rivières and Gaspé).
Circuit Courts.
Courts of the Sessions of the Peace.
Court of Oyer and Terminer and general gaol delivery.
Provincial Court of Appeal (abolished in 1849).
1840
An Ordinance to establish new
Territorial Divisions of Lower
Canada, and to alter and amend
the Judicature Act, and to provide
for better and more efficient
administration of Justice throughout
this Province, 4 Vict., c. 45.
The Court of Queen’s Bench is authorized to hear certain appeals previously
within the jurisdiction of the Governor and his Council.
1843
An Act to provide for the Summary
Trial of Small Causes in Lower
Canada, 7 Vict., c. 16, 17, 18 and 19
Re-establishment of the dual civil jurisdiction of the Court of Queen’s
Bench in first instance. Exclusive jurisdiction for suits and actions exceeding
the sum of 20 pounds, which jurisdiction is concurrent with the Circuit
Courts established in Québec City, Montreal,Trois-Rivières and St-François.
The Superior Court had jurisdiction to hear appeals from decisions
of lower courts.
Creation of a Court of Appeals made up of all the judges of the Court of
Queen’s Bench of which 4 Justices formed a quorum and holding terms in
Québec City and Montreal.
Creation of a Provincial Court having primary jurisdiction over all suits
and actions purely personal or relating solely to movable property
resulting from a contract or quasi-contract, and not exceeding
the amount of 25 dollars.
1849
12 Vict., c. 37 and 38.
Creation of the Superior Court of Québec replacing the Court of Queen’s
Bench as a court of first instance in civil matters in respect of suits and
actions exceeding $200.The Court of Queen’s Bench became a court of
appeal in civil and criminal matters, but remained the court of first instance
in criminal matters.
Amendment of the Circuit Court which was granted appellate jurisdiction
with respect to decisions of the Superior Court.
31
1857
20 Vict., c. 44.
Reorganization of the Superior Court establishing a system whereby one
judge could hold court and abolishing the office of the Circuit Court judge.
Designation of the judges of the Superior Court to preside over the
Circuit Court.
Establishment of County Circuit Courts.
1864
27-28 Vict. c. 39.
Establishment of a Court of Review sitting in benches made up of three
judges, as a division of the Superior Court, for the districts
of Québec City and Montreal.
1867
British North America Act
Constitutionalization of the status of the Superior Court.
Devolution to the Provinces of jurisdiction in matters
of administration of justice.
1869
An Act respecting District Magistrates
in this Province, 32 Vict., c. 23
32
Establishment of the District Magistrate’s Court upon which is conferred,
in civil matters, the jurisdiction of the Commissioner’s Courts.
Granting to this court of jurisdiction with respect to:
•
•
•
•
the
the
the
the
recovery
recovery
recovery
recovery
of
of
of
of
tithes
school and municipal taxes
amounts due under the Agricultural Abuses Act
sums due to the Province.
This court is the ancestor of the Court of Québec.
The establishment of this court was held to be constitutional by the Privy
Council in London in R. v. Horner (1876), 2 Steph. Dig. 450; 2 Cart. 317.
1875
The Supreme Court and Exchequer
Court Act, 38 Vict., c. 11.
Establishment of the Supreme Court of Canada.
1888
Passage of An Act to amend the Act
respecting District Magistrates, (1888)
51-52 Vict., c. 20.
Provides for the replacement of the Circuit Court, sitting for the District
of Montreal, by the District Magistrate’s Court of Montreal.
Disavowal of the Act by the federal government, which disagreed with
provincially appointed judges replacing judges it had the authority to appoint.
Establishment of the Superior Court of Review (abolished in 1920).
1897
Revision of the Code of Civil
Procedure of Lower Canada
Granting to the District Magistrate’s Court of jurisdiction in matters of:
• real suits
• suits arising from a lease
Increase of the maximum monetary jurisdiction of this Court,
depending on the location, to $99 or $50.
1908
1920
8 Ed. VII, c. 36.
The chief justice of the Court of King’s Bench is
the chief justice of the Province.
An Act respecting the Court
of the Sessions of the Peace,
8 Ed. VII, c. 42.
Establishment of the Court of the Sessions of the Peace.
An Act respecting the Organization
and Competence of Courts of Civil
Jurisdiction, and the Procedure
in Certain Cases, 10 Geo. V, c. 79.
Transfer of the jurisdiction of first instance of the Court of King’s Bench
in criminal matters to the Superior Court.
This court had jurisdiction in criminal matters and penal statutory matters
for all criminal acts and offences, except for:
• felonies such as murder and treason
• trials by jury
Abolition of the Court of Review.
Devolution to the Superior Court of appellate jurisdiction in matters
of summary criminal procedure.
1921
An Act to amend the Code of Civil
Procedure respecting the District
Magistrate’s Court, 11 Geo. V, c. 100.
Increase of the civil jurisdiction of the Magistrate’s Court to $99.99
1922
An Act to amend the Revised Statutes,
1909, respecting District Magistrates,
12 Geo. V, c. 64.
Reorganization of the Magistrates’ Court.The jurisdiction exercised
by the Circuit Court was transferred to the Magistrates’ Court,
except for the District of Montreal.
An Act to amend the Code of Civil
Procedure respecting the Jurisdiction
of the Circuit and Magistrate’s Court,
12 Geo. V, c. 94.
Suspension of the jurisdiction of the Circuit Court in districts or counties
where the Magistrate’s Court was regularly established.
An Act to amend the Courts of Justice
Act respecting the Superior Court,
23 Geo. V, c. 64
Statutes providing for the transfer of the judges of the Circuit Court to the
Superior Court and abolition of the Circuit Court, to be replaced by the
District Magistrate’s Court.
An Act to amend the Courts of Justice
Act respecting the Circuit Court of the
District of Montreal, 23 Geo. 5, c. 66
These statutes were never proclaimed and never came into force.
1933
33
1945
An Act to amend the Courts of Justice Act
respecting the Circuit Court of Montreal
and the Magistrate’s Court,
9 Geo. VI, c. 19
Suspension of the jurisdiction of the Circuit Court for the District of
Montreal and transfer of this jurisdiction to the District Magistrate’s
Court of Montreal.
R.S.Q. 1941, c. 15
1946
An Act respecting the jurisdiction of
the District Magistrate’s Court,
10 Geo. VI, c. 53.
Increase of the civil jurisdiction of the District Magistrates’ Court to $200.
Armand Mathieu, Esq.
Published, in the Revue du Barreau, an article promoting
a Unified Family Court.
1947
Decision of the Privy Council
Abolition of appeals to the Privy Council in civil matters.
1952
An Act to amend the Code of
Civil Procedure, S.Q. 1952-53, c. 18
Abolition of the Circuit Court.
The District Magistrate’s Court became the Magistrate’s Court.
According to Jacques Deslauriers, “The year 1952 theoretically marked a new
starting point from which the evolution of the Magistrate’s Court since 1922
would accelerate dramatically to reach the current [1977] stature of the
Provincial Court.” [Free translation] See Bibliography.
1956
Royal Commission of Inquiry
on Constitutional Problems
Opined that the appointment of provincial judges by the federal government
was inconsistent with federalism.
1961
Report to Hon. A. Kelso Roberts, Q.C.,
M.P.P., Attorney General of Ontario,
of certain Studies of the Jurisdiction of
County and District Courts and Related
Matters (Silk Report)
Recommended increasing the jurisdiction of the County Court, in order
to reduce the workload of the High Court of Justice, from $4,000 to $10,000.
Recommended the implementation of an exchange system enabling the
assignment of judges according to workload.
The report represented a significant step towards the creation of a single
court of first instance of the kind contemplated in section 96 of the BNA Act.
1964
Coming into force of An Act
respecting the Magistrate’s Court
Increase of the civil jurisdiction of the Magistrates’ Court from $200 to $500.
Confirmation of the constitutionality of this increase by the Supreme Court
which, however, did not rule per se on the constitutionality of the general
jurisdictional powers, rights and privileges.
Reference re Magistrate’s Court of Quebec, [1965] S.C.R. 772.
1966
1969
1970
An Act to amend the Courts
of Justice Act, S.Q. 1965, c. 17.
Conversion of the Magistrate’s Court into the Provincial Court.
New Code of Civil Procedure,
S.Q. 1965, c. 80.
Increase of civil jurisdiction from $500 to $1,000.
An Act to amend the Code of Civil
Procedure,S.Q. 1969, c. 81.
Increase of the civil jurisdiction of the Provincial Court
from $1,000 to $3,000.
Federal Parliament
Rejected the legislative amendments to the unification of section
96-type courts in British Columbia.
Crime, Justice and Society
(Prévost Report)
Already in 1970, this report identified the negative repercussions
of the dual jurisdiction then exercised by the Superior Court
and the Social Welfare Court in family matters.
1971
Establishment of the Federal Court, successor to the Exchequer Court.
34
Rapport du groupe de travail sur
les tribunaux administratifs
(Dussault Report)
Proposed the consolidation and reform of administrative tribunals.
An Act to promote access to justice,
S.Q. 1971, c. 86.
Establishment of the small claims division of the Provincial Court.
1972
An Act to amend the Code
of Civil Procedure, S.Q. 1972, c. 70.
Introduction of a provision providing for the referral to the Superior Court
of files initially submitted to the Provincial Court but in respect of which
an amendment caused the amount at issue to exceed
its jurisdictional threshold.
1973
S.Q. 1973, c. 43.
Establishment of the Tribunal des professions (Professional Court).
1974
S.Q. 1974, c. 11.
The Court of Queen’s Bench becomes the Court of Appeal of Québec.
Law Reform Commission of Canada,
The Family Court, Working Paper no. 1
Criticized overlapping jurisdiction in family matters.
Recommended the establishment of a family court having exclusive jurisdiction.
Considered that all appropriate measures, including constitutional
amendments, ought to be taken to this end.
Recommended the adoption of a specific procedure in family matters.
1975
Report of the Civil Code
Revision Office
Conducted an extensive study of the practical, legal and constitutional
implications of a single jurisdiction in family matters.
Recommended that a Unified Family Court be created in the Province of
Québec with exclusive jurisdiction in all family matters.
Recommended that judges appointed to the UFC be judges specialized
in family matters.
Recommended that rules of procedure in family matters be adapted.
Recommended that the UFC include two administrative sections:
a civil section and a penal section, the former being exercised by judges
of the Superior Court and the latter by judges of the Court of Québec
(Social Welfare Court).
Recommended that the UFC be assisted by specialized
family assistance services.
1975
La justice contemporaine
(Choquette Report)
Conducted an extensive study on the constitutional implications of the
provincial administration of courts.
Recommended that remedies with respect to the powers of supervision
and review of the Superior Court be simplified, made systematic and unified.
Recommended the unification of provincial courts and the creation within
the Unified Court (Court of Québec) of specialized divisions.
Recommended that judges have jurisdiction for all divisions.
Recommended maintenance of the principle of a single court.
Recommended the creation of an administrative division.
Recommended that the allocation of jurisdiction between the Superior
Court and the Youth and Family Division be studied in order to avoid
jurisdictional conflicts in family matters.
Recommended that all criminal offences with respect to the family fall
under the jurisdiction of the Court of Québec.
Recommended that the family divisions of the Superior Court and the
Court of Québec be housed in neighbouring premises.
35
1978
An Act to amend the Code
of Civil Procedure, S.Q. 1978, c. 8
Introduction of a provision reserving class actions for the exclusive
jurisdiction of the Superior Court.
1979
An Act to amend the Code
of Civil Procedure, S.Q. 1979, c. 37
Increase of the civil jurisdiction of the Provincial Court
from $3,000 to $6,000.
An Act to establish the Régie du logement
and to amend the Civil Code and other
legislation, S.Q. 1979, c. 48.
Establishment of the Régie du logement.The head of jurisdiction granted
to the Provincial Court with respect to suits arising from a lease, but which
specifically relates to residential leases, was granted to an administrative body.
Report of a committee of the Deputy
Minister of Justice with respect to the
creation of a Unified Family Court
Analyzed the very notion of family law.
Took cognizance of the constitutional amendments put forth
at a constitutional conference of first ministers.
Agreement between the government
of Québec and the federal government.
Debates of the National
Assembly 88-89, p. 2093.
Granting to the government of Québec of full jurisdiction
in matters of divorce.
Meeting of the Standing Committee
of Ministers on the Constitution
Jean Chrétien, then Minister of
Justice of Canada
Declared: “We are amenable to continuing to support the proposal to confer
upon provinces that so wish jurisdiction with respect to grounds for divorce.
The federal Divorce Act would continue to apply in those provinces that
prefer not interested to legislate in this field. In our view, this action is
justified since private law differs from one province to the next and since
the desire of certain provinces to exercise this authority must be respected.
The Constitution must reflect this diversity.” [Free translation]
Internal document of the federal
government (Kirby Memorandum)
During the negotiations surrounding the patriation of the Canadian
Constitution, 9 provinces out of 10 recommended the repeal of section
96 of the BNA Act.
Publication by the American Bar
Association of Justice Standards
Relating to Court Organization
and Administration
Recommended the creation of unified family courts.
1980
The change in government at the federal level apparently led
to the cancellation of the agreement.
1981
Rapport du Groupe de travail sur
la création et l’organisation d’un
Tribunal de la famille au Québec
(Morin Report)
Recommended the creation of a Family Division within an existing court.
Recommended that this division be created as a division
of the Provincial Court.
Recommended that the Youth Court be incorporated
into the Provincial Court.
Considered that no distinction should exist between the civil, criminal/penal,
family and youth divisions of the Family Division and that all services should
be provided, including mediation, conciliation, probation, expertise, etc.
1982
An Act to amend the Code
of Civil Procedure, S.Q. 1982, c. 58.
Increase of the civil jurisdiction of the Provincial Court
from $6,000 to $10,000.
Introduction of a provision for the referral to the Provincial Court of files
initially submitted to the Superior Court, but in respect of which
an amendment made the amount at issue insufficient to fall within
its jurisdiction.
36
1983
Supreme Court: McEvoy v.
New-Brunswick (Attorney General)
[1983] 1 S.C.R. 704.
Ruled that the federal Parliament could not impinge upon the
safeguards provided by section 96.
1984
An Act to amend the Code of Civil
Procedure and other legislation,
S.Q. 1984, c. 26.
Increase of the civil jurisdiction of the Provincial Court
from $10,000 to $15,000.
Introduction of a provision for the referral to the Provincial Court of files
initially submitted to the Superior Court but in respect of which an
amendment made the amount at issue insufficient to fall within its jurisdiction.
Publication by Peter H. Russell
of Constitutional Reform of
the Judicial Branch: Symbolic vs.
Operational Consideration
Criticized the symbolic hierarchy enshrining the segregation between
superior court justices and lower court justices.
1985
Herbert Marx, justice critic for
the official opposition at the
National Assembly,
L’avenir de la justice au Québec, p. 82.
Recommended entrusting the appointment of all judges
to the Québec government.
1987
Rapport du Comité sur la
révision de la Loi
sur les tribunaux judiciaries
(Brazeau Report)
Noted the weakness of the judicial system caused
by an excessive number of courts.
Criticized the confusion caused by this situation for litigants.
Recommended the establishment of a separate family court.
Considered it necessary that the administration of the judicial
system be as efficient as possible.
Recommended the unification of the Provincial Court, the Court
of the Sessions of the Peace and the Youth Court.
Proposed transitional measures to ensure that this recommendation
was duly followed up on.
Rapport du groupe de travail
sur les tribunaux administratifs
(Ouellet Report)
Criticized the lack of uniformity and coherence in matters
of administrative justice.
Publication by Peter H. Russell
of The Judiciary in Canada
Referred to family courts as specifically “modern” institutions
born of the 20th century.
Traces the history of the judiciary in Canada.
1987
Report of the Ontario Courts
Inquiry (Zuber Report)
Recommended that there should be a unified family court which should
form part of the Provincial Court system as well as amendment
of the Constitution, if need be.
Established the fundamental principles with respect to the structure
and management of the courts.
The courts are:
• a necessary part of society;
• a social service.
Courts must:
• be accessible to the public;
• exhibit timeliness;
• attract the best people.
1988
1989
1990
Coming into force of An Act to
amend the Courts of Justice Act and
other legislation to establish the Court
of Québec, S.Q. 1988, c. 21.
Establishment of the Court of Québec, structured into four divisions: Civil
Division, Criminal and Penal Division,Youth Division and Expropriation
Division.The Provincial Court, the Court of the Sessions of the Peace and
the Youth Court were thus integrated into a single court.
Debates of the National Assembly
88-89, p. 2093.
Upon tabling of the bill, the Minister of Justice indicated, among others,
that the purposes of the legislation were the following:
• To follow up on the unification proposal set out in the White Paper.
• To reduce the scattering of jurisdictions.
• To promote the mobility and versatility of judges.
• To adapt the justice system to the needs of litigants.
• To simplify the administration of justice.
An Act to amend the Charter of
Human Rights and Freedoms
concerning the Commission and
establishing the Tribunal des droits
de la personne, S.Q. 1989, c. 51.
Establishment of the Human Rights Tribunal, presided over by a judge
of the Court of Québec.
Law Reform Commission of Canada,
Toward a Unified Criminal Court,
Working Paper no. 59
Advocated the unification of criminal trial courts.
Barreau du Québec, Rapport du Comité
du Barreau sur le fonctionnement des
tribunaux judiciaires (Gilbert Report)
Proposed a two-pronged appeal system.
Publication by the American Bar
Association of its Standards Relating
to Court Organization
Standard 1.10: the judicial system must be based on a simple structure:
a trial court and a court of appeal, each having the necessary
divisions and sections.
Standard 1.12: the trial court should only have one level
and one class of judges.
Government of Ontario
Proposed the unification of all courts of first instance.
In June 1990, during a national meeting, the provincial justice
ministers unanimously approved the principle of unification.
1991
Canadian Judicial Council
(Baar Report)
Conducted an empirical and comparative study in Canada and in the
United States of the various court unification proposals.
Noted the disappearance of the English model of judicial organization
and the emergence of a Canadian model.
Stated that the current trend in matters of court reform was also
that advocated by the American Bar Association.
37
1991
Rapport du Groupe de travail sur
l’accessibilité à la justice
(MacDonald Report)
Criticized the high costs of access to courts and legal services.
Recommended greater transparency of existing legislation.
Recommended the simplification of lawsuits brought before the courts.
1992
Sommet de la Justice
Criticized a two-tiered system of justice which fosters the notion, among
the public and the stakeholders, that there are two kinds of justice.
Conférence des juges du Québec
Underlined some of the advantages arising from unification.
Suggested that a study be conducted as to the conditions for unification
of courts and that it be entrusted to a committee made up of the Judiciary,
the Bar, representatives of the Ministère de la Justice du Québec
and representatives from the public.
Québec Minister of Justice
Acknowledged the importance of having a unified court in family matters
and willingness to discuss constitutional problems with the federal
government in order to establish such a court.
Stated that he wished to closely examine the issue of unification of all courts
of first instance based on criteria of quality, humanization and access
to justice.
38
1995
An Act to amend the Code of Civil
Procedure and the Act respecting
municipal courts, S.Q. 1995, c. 2.
Increase of the civil jurisdiction of the Court of Québec
from $15,000 to $30,000.
1996
Rapport du Comité sur la rémunération
des juges de la Cour du Québec
et des cours municipales
Emphasized that the Court of Québec, within Canada, occupies a place
which the legislator intended to be strong and unique, much stronger
than in all the other provinces.
Underscored the dominant role played by the Youth Division with respect
to judicial responsibilities relating to youth.
Canadian Bar Association
Systems of Civil Justice Task Force Report
1997
1998
1999
Advocated the establishment, within each province or territory, of a unified
court of first instance with specialized divisions.
An Act to amend the Courts of Justice Act, The number of justices of the Court of Québec was limited to 270.
S.Q. 1997, c. 76
Supreme Court
Relied on unwritten constitutional principles in order to better understand
the structural values underlying explicit provisions of the Constitution.
Reference re Remuneration of Judges
of the Provincial Court of Prince Edward
Island [1997] 3 S.C.R. 3.
Recognized the role played by courts not contemplated by section 96 in
enforcing the provisions and protecting the values of the Constitution.
Recognized the institutional independence of courts
not contemplated by section 96.
Barreau du Québec
Advocated greater administrative and budgetary autonomy for the courts.
Rapport sur la justice civile
Recommended the creation of a judicial case management system.
Coming into force of An Act respecting
administrative justice, R.S.Q., c. J-3
Reorganization of the administrative and appellate jurisdictions
of the Court of Québec.
Rapport de la Commission nationale sur
les finances et la fiscalité locales
Recommended that jurisdiction with respect to small claims be granted
to municipal courts.
2000
Seniuk and Lyon, “The Supreme
Court of Canada and the Provincial
Court in Canada.”
(2000) 79 Can. Bar Rev. 77-119.
Considered that the time had come for the Canadian governments to decide
whether the provincial courts were “wholly independent” courts or if they
were to remain lower courts.
Considered that the time had come to re-examine the court
structure in general.
Criticized the risk of development of a two-tiered justice system biased
in favour of the wealthiest citizens.
Concluded that unification of the courts was the only way of eliminating
the constitutional ambiguity of a two-tiered justice system.
Rapport du Comité de réflexion des juges
de la Cour du Québec sur les juridictions
concurrentielles (Provost Report)
Recommended that the municipal courts be incorporated into the Court
of Québec and that municipal judges be grouped in a separate division.
Recommended that an entity be created within the Court of
Québec encompassing all administrative matters.
Recommended that the advantages, disadvantages and feasibility
of establishing a unified family court be assessed.
39
2001
The Chief Justice of the Court of
Québec, on behalf of the Court,
appearing before the Code of Civil
Procedure Revision Committee
Advocated the repeal of the supervisory and review powers
of the Superior Court over the Court of Québec.
Rapport du Comité de révision de
la procédure civile (Ferland Report)
Recommended grouping and refocusing the supervisory and review powers
of the Superior Court and renaming them “judicial supervisory remedy.”
Recommended granting concurrent jurisdiction with respect
to psychiatric care governed by sections 26 to 31 of the Civil Code.
Recommended the creation of a unified family court.
Recommended that the power of courts to issue safeguard orders at
any time and in respect of any matter be clarified.
2002
Rapport du Comité des juges de la
Cour du Québec sur les matières civiles,
administratives et d’appel
Recommended that a study be conducted with respect to the current
constitutional jurisdiction of the Court of Québec and additional matters
which could be entrusted to it as well as the concurrent jurisdiction
which it could exercise with the Superior Court.
Recommended a broadening of the jurisdiction granted to the Court
of Québec with respect to:
• the pecuniary value of suits
• arbitration
• non-litigious proceedings
• hypothecary remedies
Recommended the continuation of the study undertaken by researchers
Seniuk and Lyon with respect to the necessity and usefulness
of the supervisory and review powers of the Superior Court over
the Court of Québec.
Recommended that the Conseil de la magistrature (judicial council) entrust
an in-depth examination of the unification of courts of first instance
to constitutional and organizational experts.
Recommended that a division with respect to administrative and appellate
matters be created within the Civil Division of the Court of Québec
and that it be made up of judges assigned on a voluntary basis.
2002
Federal Child-centered Family
Justice Strategy
Announced the government’s intention to modernize the family
justice system based on the following three objectives:
• improvement of family judicial services;
• reform of family legislation, including the concepts
of custody, access and the interests of the child and
the alimony collection system;
• expansion of unified family courts.
Bill C-22
Tabling for first reading, by the federal government, of an omnibus
bill intended to promote the establishment of a UFC.
Request made to provincial governments to develop proposals with
a view to the expansion or creation of a UFC.
40
2003
An Act to reform the Code
of Civil Procedure, S.Q. 2002, c. 7.
Increase of the civil jurisdiction of the Court of Québec
from $30,000 to $70,000.
Office of the Chief Justice of
the Court of Québec
Establishment of a new administrative unit for the Court of Québec.
Gerald T.G. Seniuk, John Borrows
Proposed in The House of Justice: A Single Trial Court, a unified court
system with jurisdiction over all matters in all provinces.
BIBLIOGRAPHY
OFFICIALS PUBLICATIONS
FEDERAL GOVERNMENT
Law Reform Commission of Canada, The Family Court:
Working Paper No. 1. Ottawa, 1974.
Law Reform Commission of Canada, Toward a Unified
Criminal Court:Working Paper No. 59. Ottawa, 1989.
Québec. Ministère de la Santé et des Services sociaux
et Ministère de la Justice. Rapport du Groupe de travail
sur l’évaluation de la Loi sur la protection de la jeunesse :
La protection de la jeunesse : plus qu’une loi. Québec:
Gouvernement du Québec, 1995. [Jasmin Report]
Canadian Centre for Justice Statistics, Profile of Courts
in Canada 1997. Ottawa: Statistics Canada, Department
of Industry, 1998.
Québec. Ministère de la Justice. Rapport du Comité de
révision de la procédure civile : Une nouvelle culture judiciaire.
Québec: Gouvernement du Québec, 2001.
[Ferland Report]
GOVERNMENT OF QUÉBEC
Québec. Ministère de la Santé et des Services sociaux.
Rapport du Comité d’experts sur la révision de la Loi sur la
protection de la jeunesse : La protection des enfants au Québec,
une responsabilité à mieux partager. Québec: Gouvernement
du Québec, 2004.
National Assembly, Parliamentary debates and parliamentary
commissions with respect to the passage of An Act to amend
the Courts of Justice Act and other legislation to establish the
Court of Quebec, S.Q. 1988, c. 21.
Québec. Ministère de la Justice. Rapport du groupe de travail
sur les tribunaux administratifs: Les tribunaux administratifs
au Québec. Québec: Gouvernement du Québec, 1971.
[Dussault Report]
Québec. Ministère de la Justice. La justice contemporaine.
Québec: Publications du Québec, 1975. [White Paper]
Québec. Ministère de la Justice. Rapport du Groupe de travail
sur la création et l’organisation d’un Tribunal de la famille au Québec.
Québec: Gouvernement du Québec, 1981. [Morin Report]
Québec. Ministère de la Justice. Propositions préliminaires
de réforme: l’organisation des tribunaux administratifs et les règles
de preuve et de procédure administrative. Document d’orientation
en droit administratif no 4. Québec: Gouvernement
du Québec, 1983. [Atkinson-Lévesque Report]
Québec. Ministère de la Justice. Rapport du Comité sur
la révision de la Loi sur les tribunaux judiciaires. Québec:
Gouvernement du Québec, 1987. [Brazeau Report]
PROVINCIAL GOVERNMENTS
Zuber Commission, Report of the Ontario Courts Inquiry,
Ontario, Queen’s Printer, 1987. [Rapport Zuber]
Report of the joint Commitee on Court Reform, 1992.
Civil Justice Review, 1996.
Ontario Report on Family Law
ORGANIZATIONS
American Bar Association. Standards Relating
to Court Organization. Chicago, 1990.
Canadian Bar Association. Systems of Civil Justice Task
Force Report.The Association, 1996.
Barreau de Montréal. Rapport du Comité ad hoc
sur la Cour d’appel, 1982. [Viau Report]
Québec. Ministère de la Justice. Rapport du groupe de travail
sur les tribunaux administratifs: L’heure est aux décisions. Québec:
Gouvernement du Québec, 1987. [Ouellet Report]
Barreau du Québec. Rapport du Comité du Barreau
sur le fonctionnement des tribunaux judiciaires, 1990.
[Gilbert Report]
Québec. Ministère de la Justice. Rapport du groupe
de travail sur les cours municipales. Québec: Gouvernement
du Québec, 1988. [Hétu Report]
Barreau du Québec. Mémoire sur le rapport
de la Justice civile au Canada, 1998.
Québec. Ministère de la Justice. Rapport et Rapport-synthèse
du groupe de travail sur l’accessibilité à la justice : Jalons pour une
plus grande accessibilité à la justice. Québec: Gouvernement
du Québec, 1991. [MacDonald Report]
Québec. Ministère de la Justice. La justice : une responsabilité
à partager : Actes du Sommet de la Justice. Québec:
Gouvernement du Québec, 1993. [Sommet de la justice]
Québec. Ministère de la Justice. Rapport du groupe de travail sur
certaines questions relatives à la réforme de la justice administrative :
Une justice pour le citoyen. Québec: Gouvernement du
Québec, 1994.
Comité de réflexion des juges de la Cour du Québec.
Rapport du Comité de réflexion des juges de la Cour du Québec
sur les juridictions concurrentielles, 2000. [Provost Report]
Conférence des juges du Québec. Mémoire présenté
au Sommet de la Justice - Une meilleure accessibilité
à la justice par l’unification des tribunaux. Une solution
qui s’impose, Conférence des juges du Québec, 1992.
Civil Code Revision Office. Committee on the Family
Court, Report on the Family Court. Montreal:
Éd. off. du Québec, 1975.
43
44
AUTHORITIES
REFERENCE WORKS
SPECIFIC TO JUDICIAL ORGANIZATION
Baar, Carl. One Trial Court: Possibilities and Limitations.
A report prepared for the Council in November 1991.
Ottawa: Canadian Judicial Council, 1991.
Benyekhlef, Karim. “La notion de cour d’archives
et les tribunaux administratifs.” (1988) 46, 1
La revue juridique Thémis, 61-81.
Darbyshire, Penny. English Legal System in a Nutshell.
3rd Ed., London: Sweet & Maxwell, 1995.
Friedland, M.L. A Place Apart: Judicial Independence
and Accountability in Canada. Ottawa: Canadian
Judicial Council, 1995.
Gagnon, Bertrand. La compétence des juridictions civiles
de première instance. Montréal:Wilson & Lafleur, 1994.
Girard, Monique and Marcel Proulx. Pour comprendre
l’appareil judiciaire québécois. Québec-Toronto,
L’Institut d’administration publique du Canada,
Presses de l’Université du Québec: 1985.
Hogg, Peter. “Federalism and the Jurisdiction
of Canadian Courts.” (1981) 30 U.N.B.L.J. 9.
LeDain, G.-E.. “The Supervisory Jurisdiction in Québec.”
(1957) 35 Canadian Bar Association Review 788.
Lyon, Noel. “Provincial Courts and the Administration
of Justice.” (1979) Provincial Judges Journal.
Pépin, Gilles. La jurisprudence récente de la Cour suprême du
Canada sur la portée juridictionnelle de l’article 96 de la Loi
constitutionnelle de 1867: importantes modifications aux règles
applicables en cas de litige. (1985) 55 R. du B. 575.
Russell, Peter H. Constitutional Reform of the Judicial Branch:
Symbolic vs. Operational Consideration. (1984) 17 Canadian
Journal of Political Science 225.
Russell, Peter H. The Judiciary in Canada:The Third Branch
of Government. Montreal: McGraw-Hill Ryerson Ltd, 1987.
Russell, Peter H. Evolution of Canada’s Trial Court System From
Confederation to Today. Paper presented at the Trial Courts
of the Future Conference, Saskatoon, May 15-17, 2002.
Seniuk, Gerald T.G., and John Borrows.“The House of Justice:
A Single Trial Court.” (2003) Criminal Law Quarterly, p. 126.
Seniuk Gerald T.G., and Noel Lyon. “The Supreme
Court of Canada and the Provincial Court in Canada.”
(2000), 79 Can. Bar Rev. 77.
St-Louis, Huguette. “La réforme des tribunaux de première
instance au Québec,” notes for a speech presented at
the Trial Courts of the Future Conference, Saskatoon,
May 16-17, 2002.
Ziegel, J.S. “The Supreme Court Radicalizes Judicial
Compensation.” (1988) 9:2 Constitutional Forum 31.
Marx, Herbert, MNA for the riding of d’Arcy-McGee.
L’avenir de la justice au Québec. Québec:
Hôtel du Parlement, 1985.
GENERAL REFERENCE WORKS
Millar, Perry S., and C. Baar. Judicial Administration
in Canada. Québec-Toronto, L’Institut d’administration
publique du Canada, Presses de l’Université
du Québec: 1981.
Brun, Henri, and Guy Tremblay. Droit constitutionnel.
4e éd.,Yvon Blais, 2002, pp. 728-731.
Seniuk, Gerald T.G. and Noel Lyon. “The Supreme
Court of Canada and the Provincial Court in Canada.”
(2000) 79 Can. Bar Rev. 77-119.
Morissette,Yves-Marie. “Les lenteurs de la justice
considérées sous un angle qui les avantage.”
(1987) 33 McGill Law Review, 137.
Pépin, Gilles. Les tribunaux administratifs et la constitution:
Étude des articles 91 à 101 de l’A.A.N.B. Montréal:
P.U.M., 1969.
Beaudoin, Gérald-A.. Le fédéralisme au Canada: les institutions,
le partage des pouvoirs. Montréal:Wilson et Lafleur, 2000.
Chevrette, François, and Herbert Marx. Droit constitutionnel:
notes et jurisprudence. Montréal: P.U.M., 1982.
Clement,W.H.P. The Law of the Canadian Constitution. 3rd
Ed.,Toronto: Carswell, 1916.
Hogg, Peter. Constitutional Law of Canada, 2003 update.
Toronto: Carswell 2003, pp. 7-26 to 7-30, 26-15 and 26-16.
Roach, Kent. Constitutional Remedies in Canada. Aurora:
Canada Law Book, 1998.
Tremblay, André. Droit constitutionnel, Principes. 2e Ed.,
Thémis, 2000, pp. 224-233.
HISTORICAL
REFERENCE WORKS
Audet, Pierre-E. Les officiers de justice - des origines
de la colonie jusqu’à nos jours. Montréal:
Wilson & Lafleur, 1986.
Deslauriers, Jacques. La Cour provinciale et
l’art. 96 de l’A.A.N.B. (1977) 18 C. de D. 881.
Deslauriers, Ignace. “La Cour d’appel du Québec
et ses juges.” Bulletin no 38, Québec, Comité général
des juges de la Cour supérieure de la province
de Québec, 1980.
Deslauriers, Ignace. “La Cour du Canada et ses juges...”.
Bulletin no 40, Québec, Comité général des juges de
la Cour supérieure de la province de Québec, 1981.
Deslauriers, Ignace. La Cour supérieure du Québec
et ses juges. Québec: Ministère de la Justice, 1980.
Deslauriers, Ignace, and Paul Robitaille. “Histoire des
tribunaux et de la magistrature du Québec: Les cours
de Magistrat 1867 à 1965, La Cour provinciale
1965 à 1981 et leurs juges.” Bulletin no 44, Québec,
Comité général des juges de la Cour supérieure
de la province de Québec, 1981.
Deslauriers, Ignace, and Jean Goulet. “Histoire des
tribunaux et de la magistrature du Québec : La Cour
des sessions de la paix.” Bulletin no 46, Québec,
Comité général des juges de la Cour supérieure
de la province de Québec, 1982.
Lareau, Edmond. Histoire du droit canadien:
depuis les origines de la colonie jusqu’à nos jours.
Montréal: Librairie générale de droit et de jurisprudence,
Périard, Libraire-éditeur, 1889.
Lederman,W.R. “The Independence of the Judiciary.”
(1956) 34 Can. Bar. Rev. 769.
Lemieux, Rodolphe. Les origines du droit franco-canadien.
Montréal: C.Théoret, 1901.
Nantel Maréchal. Cour de magistrat de district
et Cour de circuit. (1949) 9 R. du B. 241.
Nantel Maréchal. Un demi-siècle de vie judiciaire.
(1951) 11 R. du B. 61.
45
MISCELLANEOUS
Journal du Barreau. “La journée du barreau - Le ministre
Lévesque rassure les juges Deschênes et Gold.” 8, no. 7,
September 1976, p. 5.
REFLECTION AND ORIENTATION COMMITTEE
O N C O U R T S O F F I R S T I N S TA N C E I N Q U É B E C